Provincial Right to Ban Films confirmed by Nova Scotia Ban of “Last Tango in Paris”

All provinces and territories in Canada have the legal right to ban any film, for any reason. This was confirmed by a Supreme Court case in 1978. The case started in 1974, in Nova Scotia, when the Nova Scotia Board of Censors banned Last Tango in Paris.

The late 1960s and early 1970s saw a number of films that challenged audiences and censors with previously unseen levels of violence and sexuality (at least in widely distributed films). The United States brought in a new ratings system in 1968, grudgingly accommodating adults only films, and across Canada, most of the already more liberal boards were reorganizing to place greater emphasis on classifying films, and less on censoring. In 1972, the year Last Tango in Paris was released, Manitoba adopted a policy of not banning any films.

Last Tango in Paris was approved as a film for adults only in every jurisdiction except Nova Scotia. The retiring chair of the Ontario Board of Censors, who spent the later part of his career arguing against censorship, said “we just closed our eyes and ears and let it go.” In Manitoba, the owner of a theatre showing Last Tango was charged with exhibiting an obscene movie. The trial considered the artistic merits of the film, and the court ruled the film was not obscene. An appeal was dismissed, in a split decision (Regina v. Odeon Morton Theatres Ltd. and United Artists Corp.).

The Dartmouth Free Press decided to appeal Nova Scotia’s ban to the provincial cabinet. The paper also attacked the Board, noting that the three members, appointed for life, were patronage appointments. The chair had previously run a variety store. At the time he was appointed, his brother was a member of the provincial legislature. Another Board member had previously been a teacher, and briefly held the patronage appointment of county road superintendent. The third Board member was a bar owner who was active in the premier’s constituency.

Censors appointed through patronage are not necessarily less qualified than anyone else. The job consists largely of watching movies and filling out forms. However, the Free Press also noted that the Board understated the number of films it had banned, and that sixteen films had been banned in the last two years. In defense of Last Tango, the Free Press noted:

Last Tango in Paris is regarded as anything but a peep-show, Eve type movie. American critic Pauline Kael said it is to movies what Stravinsky’s Rites of Spring was to music. It is on Time Magazine’s list of best movies, and it has already won important awards. When CBC’s Information Morning radio show (6 A.M. – 9 A.M.) polled listeners, an astounding more than 600 gave their views, the majority saying they felt the movie should not have been banned.

The appeal to cabinet was unsuccessful, so the Free Press attempted to take the province to court over banning the film. The case promptly got bogged down over whether or not an individual can request that the constitutionality of a law be reviewed. The matter went all the way to the Supreme Court of Canada, which ruled in 1975 that the editor of the Free Press did have standing to challenge the law (Nova Scotia Board of Censors v. McNeil, [1976]).

The case returned to provincial court, to consider whether or not a province had the right to ban a film, particularly without giving any reasons, and for a film that was not criminally obscene. Among the considerations was that criminal obscenity can only be determined by a federal court. Again, the case went all the way to the Supreme Court of Canada. Gerard McNeil, editor of the Free Press, was on one side, with the Canadian Civil Liberties Association. On the other side was the Crown, as well as the Attorneys General for Canada, Ontario, Quebec, British Columbia, Prince Edward Island, and Alberta.

In a five/four split decision, the Supreme Court ruled that provinces did have the right to ban films. The Court ruled that banning films was simply trade regulation. In addition, banning a film was not an action that punished anyone. As such, film bans were unrelated to criminal matters such as obscenity, or to constitutionality.

…the pro­vincial government in regulating a local trade may set its own standards which in no sense exclude the operation of the federal law.

There is, in my view, no constitutional barrier preventing the Board from rejecting a film for exhibition in Nova Scotia on the sole ground that it fails to conform to standards of morality which the Board itself has fixed notwithstanding the fact that the film is not offensive to any provision of the Criminal Code; and, equally, there is no constitu­tional reason why a prosecution cannot be brought under s. 163 of the Criminal Code in respect of the exhibition of a film which the Board of Censors has approved as conforming to its standards of propriety (Nova Scotia Board of Censors v. McNeil, [1978]).

The United States determined that film censorship was merely trade regulation in 1915, but rejected that in 1958, and declared that films were subject to the First Amendment free speech provisions.

The constitutionality of the provincial right to ban films has never been tested, at the Supreme Court of Canada, under the 1982 Charter of Rights and Freedoms. The year the Charter was adopted, a group of artists launched a challenge in Ontario, over that Board’s handling of four films. The court sided with the Board for three of the films, but in the case of the fourth, noted that the Board had no legally defined right to ban a film. The province appealed, but the appeal was dismissed. The province could have taken the issue to the Supreme Court, but instead chose to update the laws and regulations to legally define how films could be banned (Re Ontario Film & Video Appreciation Society and Ontario Board of Censors, 1984).

Updating the laws legally defined the Board’s rights, but created a constitutional problem. In 2000, Glad Day Books was charged under the Theatres Act with selling an unapproved film. The store argued that the cost and delay of getting a film approved was unconstitutional. (The film in question was 123 minutes long, so at $4.20 a minute the approval cost was $516.60. For a mainstream theatrical release, this is negligible, but for a single store selling perhaps ten home video copies, it is prohibitive). Glad Day lost, and appealed. Among other arguments, Glad Day suggested that the McNeil case from Nova Scotia no longer applied. The court did not accept that.

Glad Day and Scythes did not persuade me that the adoption of the Charter undermines the McNeil case as controlling authority as to whether the Province of Ontario has the constitutional competence to enact the legislation from a division of powers perspective. In a division of powers analysis, the court must begin with the presumption of constitutionality. It was held in McNeil that the purpose of the film censorship scheme was to regulate the film industry within the province and, therefore, it was validly enacted by the province. The Charter does not change the division of powers analysis or its result. After the adoption of the Charter, just as before, the province has the jurisdiction, pursuant to its property and civil rights power, to enact legislation to regulate the film industry, including the censorship of images that are harmful to society, and such a provincial regulatory scheme can operate concurrently with the federal government’s penal obscenity law. What has changed since the adoption of the Charter is that both federal and provincial laws must comply with the Charter’s guarantees. (R. v. Glad Day Bookshops Inc.)

Considering that last point, the appeal ruled that while classification was fine, mandatory submission for approval was an unconstitutional prior restraint. The court gave the government a year to separate classification from film approval. This was widely reported as the end of censorship and putting the Board out of business. Again the government chose to update the law rather than appeal to the Supreme Court. The new law defied the court, and kept prior restraint and the right to ban films. In effect, nothing changed.

Nova Scotia did eventually approve Last Tango in Paris. The records on when it was approved have been lost. Nova Scotia and other provinces have since restructured their censorship boards. Nova Scotia, like several other provinces, now uses a part time public board, with members who work a few days a month for a modest payment. Alberta became the second board to declare a no ban policy. The other boards all continue to have the right to ban films, often without clear reasons. This is Quebec’s statement on censorship and bans:

Censorship in Québec was officially abolished in 1967 with the creation of the Bureau de surveillance du cinéma. Should the Régie du cinéma feel that a film interferes with public order, it can refuse to classify it, which would mean that the film could not be distributed in Québec.

In practice, bans are exercised against adult sex films, and may be used as a threat to demand cuts. It is also adult sex films that are occasionally approved by a provincial board, and then found to be criminally obscene by the courts, to the dismay of the convicted retailer. These films have few defenders, and at this point no one seems too concerned about the right of provinces and territories to ban films. Maybe there is no reason to be concerned, and the law will eventually join the list of out of date laws that are mocked. However, a change of government and public mood is all that is required for film bans to become headline news again.

One thought on “Provincial Right to Ban Films confirmed by Nova Scotia Ban of “Last Tango in Paris””

I remember this case. “A Clockwork Orange” and “Who’s Afraid of Virginia Woolf” were also banned initially and later allowed. I don’t know the dates, but I recall my brother seeing ‘Clockwork’ in NB. I never did see it.